Memeorandum

July 02, 2012

Roberts Switched, Conservatives, Uhh, Grumbled

CBS News claims to have two sources backing the notion that Chief Justice Roberts left the conservative wing of the court at the altar on the health care decision:

(CBS News) Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Writing at the Volokh Conspiracy, David Bernstein hadinferred some subtle divisions by the structure of the opinions and dissents.

It's pretty clear that Robert's 3 priorities were (probably in this order) 1. setting limits to the commerce clause to make clear that Congress can't create commerce and then regulate it and to restate federalism as alive and well; 2. Get control of and keep control of writiing the majority opinion. 3.follow SCOTUS doctrine to infer the constitutionality of a Congressional statute and repeal as a last resort in order to maintain the SCOTUS's 'legitimacy' as the decider of constitional issues, i.e. the SCOTUS's institutional interests. Roberts succeeded in all three. As a conservative, I disagree with Roberts doing #3 by fabricating the tax basis for upholding ACA, that's a terrible form of judicial activism. But, Roberts has 5 Justices ruling that that the commerce clause has limits, and 7 justices to uphold Federalism, and he leaves the politicians to deal with an unpopular law after elections. I'd say that's pretty smart piece of business by CJ Roberts.

DOT - thank goodness for Raz poll today! President Obama seemed to be gaining a bit last week so I am pleased to see that his numbers are falling again. I think his surrogates did him little to no good on television yesterday - the tax that isn't a tax except when you need the SC to say it's a tax and after that, it's no longer a tax:)

I know liberals in general have the cognitive ability of pet rocks, but are even they really fooled by this: "It's not a tax, it's a penalty!" stupidity. Whatever you call it, it's still money out of your pocket. I mean, if you have to pay a $3,000 "penalty" to Uncle Sam because you don't have health insurance, are you going to go, "Oh, well, at least it's not a tax, so I'm good with that."

I'm not sure if I posted this and apologize if I did, but this is the story of the day:

2. COMPARE AND CONTRAST: A Tale of One Tragedy and Two Campaigns. First from the Romney Campaign through email:

Friend,
The severe storms that ripped through Virginia Friday claimed at least six lives across the commonwealth and left thousands without power. It could be several days before power is restored to those affected.
If you’d like to make a donation to the relief effort, please bring supplies to the Romney for President Headquarters located at 3811 N. Fairfax Dr., Suite 750 in Arlington tomorrow between 10am and 7pm.
We will distribute donations to various relief centers in the area.
Here’s what we need:
• Bottled Water
• Non-perishable food items, such as beef jerky, granola bars, peanut butter, etc.
Bring your supply donations to our headquarters tomorrow and we’ll ensure it gets to your fellow Virginians who are in need on Tuesday.
Thank you in advance for your generosity.
Sincerely,
Sara Craig
Virginia State Manager
P.S. We know that everyone wanting to help cannot make it to Arlington. If you would like to donate to the Red Cross, please call 1-800-Red-Cross, or visit this link to make a donation online:

From the Obama Campaign Via Twitter:
Keep cool while you’re canvassing this summer, Our Vote Obama Tank Top is a stylish and fun way to show your support

I think it makes a great deal of difference whether it's a tax or a penalty, particularly if we're defining the word "tax" to include punishment for not buying a product the government told us to buy, as opposed to monies we all contribute in order to fund government operations.

They're insistent on it not being calling it a tax, because they know there's all that video out there of Obama promising he won't raise taxes on anyone making under $250,000, "not one dime." So they're desperately hoping there's some way to blunt the impact of the commercials that will show clips of Obama's promises juxtaposed against stuff like the WSJ's report that ObamaTax's taxes are going to fall most heavily on the poor and middle class.

It's like they're screaming, "I'm not naked! Just because you can see my bare tits and ass, that doesn't mean I'm naked!"

Rove's American Crossroads has been extremely good at coming up with timely ads to skewer the JEF. I'd love for them to come up with one that uses that "not one dime" quote followed by a laundry list of how many dimes have been needed.

I basically agree with NK but I want to point out that if I had a radio show and that was my living that is not what I would voice on the air. That would not drive listeners nor urge voter participation in November.

So I am glad they are fuelling outrage against Roberts, the court, Obamacare, the bloc of 4 solid liberal votes. Whatever.

It is in Mark Levin or Rush's best commercial interests to do what they are doing. It is in our political interests for them to stir people up.

Please do not make them the source for why some of us think this may have the greatest long term value for starting back from the abyss.

Seriously, this reminds me of all the contentiousness about Romney vs. Newt vs. Santorum. There was no question we were going to rally around ABO, but we could still have lively debates about the candidates. Now we're all on board for Romney and now great harm was done by the earlier discussions.

This is an historic ruling, and there is a lot to puzzle over. Doing so doesn't detract from the goal of repealing the monstrosity.

Well as with CommonCore implementation, or Cameron's blanc Mange Toryism, there is no logic to the decision, Our fishwrap, proudly
urges our governor to fit us with the serf's collars, even though they know not why.

"I don’t mind gay groups keeping a vast database of anonymously-reported homophobic thought-crimes if they feel that’s a productive use of their time. But it is preposterous that this sprawling directory of cobwebbed flamer cracks and swishy-gait titters will be publicly funded by taxpayers under the Québec Government’s “action plan for the fight against homophobia,” which apparently also includes redesignating Jean-Marc Fournier, the minister of justice and attorney general, as “Minister of Justice, Attorney General, and Minister for the Fight Against Homophobia.”"

Over and over, we are hearing about the "most popular" aspects of Obamatax being something the GOP just must address and promise to keep.

Okay, I get the idea that "pre-existing conditions" is popular and something we could all have reason to fear in our insurance past, present and future. But, keeping "kids" on their parent's insurance plans until age 26? Why is that popular?

What are we basing this "popularity" on - polling? Who is doing the polling? How popular is it? I have a deep distrust of memes - especially when the MFM so relentlessly pushes them in lockstep with the regime.

Ext: Under Obamatax, indeed they would "have to pay a fine." But, if the GOP repeals and uproots it (as Boehner is claiming they will do), penalties or fines would become moot, no? So why do so many Republicans join in the handwringing about keeping this "popular" provision?

As I said, I am tired this morning, so forgive me if I am exceptionally dense.

There is quite a bit of circumstantial evidence to corroborate the CBS account of Roberts changing his vote at some point in the final month. I am not aware of any evidence concerning what his motive may have been.

This argument is going to pit the Mommy Party against the Daddy Party. The Mommy Party says "free stuff! Forget pre-existing conditions! Stay on Mom and Dad's policy till you're 26!" The Daddy Party has its work cut out for it. And the Daddy Party is also infected with saps who want to keep the "popular" parts of this monstrosity.

I get the idea that "pre-existing conditions" is popular and something we could all have reason to fear in our insurance past, present and future.

As with so many "popular" ideas, if a realistic price tag were attached, it might not be so popular. And part of that price tag is, of course, the mandate, since it would be completely infeasible otherwise.

Health insurance should be a lot like automobile insurance, where ownership is at the individual level, and portability is possible. For a long time I was adamantly against the 26 year old on the family policy. But, my better half explained that, ¨look, young kids/adults frequently change jobs. Putting thier health insurance under an employer makes continuity of coverage more difficult. If the concern is teaching fiscal responsibility, the parents can charge the child as many families already do¨ (eh, you want the car, you gotta buy the gas and contribute to the insurance. . . etc).

Meanwhile the pool of premium payers is expanded. I like the idea and whether we think the fiscal responsibility issue is a societal requirement or not, to me it would be okay if it were worked out under the parents.

What matters much more to me is the ownership of the health insurance (at the individual level), the portability of the insurance (no longer a problem if not employer-supplied, but individually owned) and the ability & opportunity to purchase policies across state lines. Do all of this allows risk pools to be set up, competition between companies and individuals to buy the kind and level of coverage they want rather than having one-size-fits-all health insurance rahmmed down their throats.

The CBO estimates that [Bronze Level] policies will cost $4,500-$5,000 per person and $12,000-$12,500 per family in 2016, with the costs rising thereafter"

Point 1: The CBO is not likely to have underestimated costs - I'd expect actual policy prices to be significantly greater

Point 2: The Bronze level is being promoted as lowest-cost/only mandatory services/max deductible option from "the exchange". The same package offered by Private Insurers will almost have to be priced the same - if not because of the market, then because regulations will appear making it so.

Re: the 26-year-old on the parents' insurance... The way I see it the 2x yo can buy his own insurance, which in the present market (not the ObamaTAX market)should not be too high, since the 2x yo falls within a low risk demographic. Or he/she can stay under the parents' policy whose premium should increase accordingly. The difference is who pays, and the fact that the 2x yo is encouraged to have some insurance whereas he/she might otherwise have accepted the risk of carrying no insurance (in which case Mommy & Daddy would probably have filled the void, anyway).

I ran the above rationale through a cousin who is retired from the insurance business to see if he saw it differently. Fundamentally, he didn't.

Bottom line: the 26 yo insurance carrot looks to me like a big red herring until you invoke ObamaTAX, and since no one knows how that will work anyway, it still looks like a red herring.

RSE-- I agree, Levin and Limbaugh are businessmen-- they talk about things to interest and entertain listeners in order to sell advertising time. Nothing wrong with that-- but nobody should not forget how they earn their big incomes.

The economy and taxes-- more lousy manufacturing economic numbers today, and there may be another lousy jobs number friday. Jobs, taxes and debt-- that should be what this election is about as far as Conservatives are concerned. Making the Dems defend Obamacare as a tax is a very fine place to be in this election IMO.

It is worth mentioning the Charlie Rangel Fraud/Recount that is now front and center on FOX and compare it to the Racine Recount.

From listening to the comments about Rangel that are being reported they appear to be the very same sort of Fraud complaints that we have read about in Racine;

In the Rangel case ---802 votes separating the competitors and more than 3,000 votes remain unaccounted for.

In the Racine case---820 votes separating the competitors and between 2000-4000 voters illegally given Ballots in Racine.

On FOX I believe I heard allegations that Ballots were unsecured in the Rangel case after the Election concluded.

Ditto in Racine.

Overall point I'm making is that the situation on it's face seems quite similar, yet only one of these elections is getting Media attention.

That's probably due to the importance and name recognition of Rangel as opposed to some unknown State Politician in Racine, but it also seems to me that the Media is probably examining it because Rangel in many ways is an embarrassment to the Left, and it would be a good story overall if he was put out to pasture.

Heard a little bit on the radio today, mostly rehash of what we know and speculation on what Wanggaard will do next. A couple libs called in and said since the MSM isn't covering it, it's all Tea Party lies. Chavez Center precincts at the heart of it all -- I want a court ordered audit of all voters there.

"Unfortunately, rather than clarify the myriad of issues that surfaced on June 5, the recount uncovered even more suspicious activity," the Racine Republican said in a statement, pointing to "missing pages in poll books, missing signatures, wrong voter numbers, wrong and unverified addresses and most shocking of all, unsealed and sealed and reopened ballot bags."

"Conservative, or Republican-appointed, justices are always crossing over to the liberal side. We have seen Roberts. You had Burger, O’Connor, Souter, others. You have Kennedy. Do the liberals ever cross over to the conservative side? Aren’t their votes pretty much in the bag, rock-solid predictable? Isn’t all the 'swingin'” action from the right, so to speak? Conservatives are always 'surprising' us. Do liberals ever surprise?"

As I posted, I don't find credible any of the alleged rationales for Roberts' switching... for the simple reason that he would have to be stupid to think that any of them would accomplish what he allegedly thought to accomplish...

For example, how could have thought that his switching votes wouldn't have become public, thereby making him look like he gave into pressure, the exact opposite of what he wanted to do?

Or that he voted to approve Obamacare in order to keep the Commerce Clause from being improperly used to justify the mandate? He didn't need to vote 'yes' in order to do that, he had the five votes to limit the applicability of the Commerce Clause.

And since none of the official hypotheses make sense, I (half tongue in cheek) offer up some of my own... such as Roberts, thinking that Kennedy was going to vote yes, wagered all his family money betting on Obamacare being upheld, only to have to scramble after finding out Kennedy was a no vote?

"But I don’t believe, as some on the right hope and the left fear, that the decision contains some esoteric affirmation of cherished conservative constitutional thought that Roberts can deploy in future cases to defend the cause of limited government. Any limiting principle Roberts established with respect to the Commerce Clause is outstripped by his dubious assertion that the federal government can punitively tax you for any decision you make — or don’t.

"These buck-up-now righties and worrywart lefties seem to share the belief that if Mitt Romney is elected president in November, the act is likely to be repealed. This is a belief I do not now and have never shared. The list of federal redistributive programs to have been passed and then repealed is diminutive. People who begin receiving checks tend to want to continue receiving them. And the full panoply of health care industries co-opted by the bill’s corporatist regulations is already producing the new class of stakeholders (and their lobbyists) whose livelihoods will depend on the act’s permanence.

"No, Roberts’ decision means Obamacare will be with us, in one form or another, until either it — or our entire entitlement apparatus — collapses of its own actuarial girth."

Or perhaps the majority of states will elect not to expand Medicaid and the number of new "people receiving checks" due to Obamacare will be minimal.

This isn't like Social Security. In my view the worst aspects of the law do not lie in the redistributive measures but in the punitive taxes and regulations - to businesses, to the insurance industry, to the medical device industry, to individuals, and prior to the Roberts decision, to the states. Not to mention the First Amendment problems.

Roberts didn't switch in the last week, or the last month as the CBS story says, which may be untrue.

Roberts really took his position months ago when he, aka "the Court" sui generis appointed a lawyer to argue the "tax" issue. The deal was already done by then, he was contacted by lawyers or forces claiming justice but really being Big Pharma (or other) agents who stood to lose on failure of Obamacare, and they presented him with a solution. Ginsburg might be behind it too, she's senile enough to be manipulated by the money posing as progressives.

Looking at what Kennedy did for the past month or not will get you nowhere. Start with the appointment of the lawyer. That is the beginning of the cover story. Work backwards. Cui bono?

It's starting to look like a contest now between which will come first--the election or a double dip recession. Is that a silver lining--yes, we're sinking, but at least we get to blame the iceberg on Obama?

"Any limiting principle Roberts established with respect to the Commerce Clause"

Gosh, this is such B.S. The same thing could have been done in a real case or different ruling. The case that he did it here is not proof of the benefit, but proof of the coverup--it's hand-waving, a distraction. Any attention to it is an example of the money's success, not Roberts' integrity.

The commerce clause ruling is just sprinkles on a turd. Like Obamacare's "benefits" promoted to hide the fact that it is a health industry raid on the American public.

((The pre-existing conditions part of all of this mess is what concerns me.
I'd like to know what percentage of healthcare pre-O-tax were pre-existing costs.))

"...being able to force an insurer to pay for a preexisting health condition is like being able to buy fire insurance after your house has burnt down, and then forcing that insurer into having to cover your losses." --Peter Schiff

Did Mr. Schiff investigate whether this is just a minor sop to cover up who Obamacare really benefits, or does the fact that health industry lobbyists wrote the bill is just to troubling to his sense of the order of the world to consider that?

Debra Saunders on Dennis Miller sez she agrees with Robert's ruling-- as a political decision to try to make the decision Non-Political. I believe she thinks it has failed.

Dennis sez Robert's Ruling is the Equivalent of the Brit General in The Bridge On The River Kwai helping the Jap's build the Bridge.

A good conversation, but it appears to me that all the fire has been knocked out of Dennis's belly, and it appears to me that he is resigned now to shrugging like Atlas.

Cavuto now has on Mark Levin.

So far I have seen no one on the National scene as a pundit, Talker, etc, who had a negative opinion from the git-go who has changied their mind. They may exist and I may just have missed them., but instead I sense anger is growing at Roberts and at the decision.

"Dennis sez Robert's Ruling is the Equivalent of the Brit General in The Bridge On The River Kwai helping the Jap's build the Bridge."

That's funny!

"who had a negative opinion from the git-go who has changed their mind."

Yes, but there are plenty of liberal bloviators who are not complete Obamabots who hailed the decision, Obamabotically at first, but then realized a lot of Democratic insiders were praying for the Court to take Obamacare off the plate. Oops!

"how the insurance business works, and the new model for health care won't and can't work"

Really? This seems disjointed, and you don't work in insurance. The bill works if it brings in the money. It brings in the money in Massachusetts. It will bring in the money in the USA. That "works." Creating some other standard of what "works" is near gibberish. What "works" is what brings in the money. That's what the health industry paid for. They probably also paid for the lawyering that thought up the tax angle for Roberts and put it in his hand, the disguise was the court's hiring of a lawyer to argue the tax angle. Roberts was already gotten to and done, although various Repubs and Democrats might have thought he was still wavering.

Roberts. At a lunch, meeting, wherever his old buddies or someone else meant.

"The CBS guy claims to have two sources."

Please. National Review already says something else. Whatever it is, Roberts was decided at least as early as March. Any thing after is just a distraction. If Kennedy hassled him for a month after, it was because Roberts was pretending it wasn't a done deal. If Leahy is on the Senate floor in May threatening Roberts, it was likely that liberal court staffers misinterpreted Roberts too. Everything that really matters goes back to March and earlier. Thereafter is just drama.

"How about you?"

I have the greatest witness of all. John Roberts himself. When he ordered a lawyer in March to argue this weird tax issue that neither litigating side argued, that was the "tell." He likely already expressed to old partners, or whomever, that the Commerce Clause route was a no deal. So the lawyers thought up this tax angle, and either told him of it, or handed him a brief on the side. There is no way that he just dreamed up the tax angle and decided on a whim to get a lawyer to argue it. It was likely a package given to him, probably also sold on the idea of being responsible to the people or whatever cover story. The hired lawyer was certainly a cover to make this junk look like it was properly litigated and argued.

So I don't care what CBS says Roberts was saying or pretending later, except for that it was part of the show. The deal was done in March and earlier. I think it was Pharma, not Obama, because the Obama lawyers seemed to be against the argument until nearly the last moment when Roberts set up the special oral hearing session for the "tax" issue.

While we're discussing Bartow Farr's appointment, we might as well include what it was he was asked to argue to the Court, and why.

He was asked to argue the position taken by the 11th Circuit, namely that the law could be severed from the mandate and upheld even if the mandate were struck down. Neither side had argued such a position, so it was appropriate to have it represented. In the event, the position was moot.

What's really amazing is how Roberts (when he was in the majority. As Chief. He could assign the opinion. But he didn't assign it to himself! He assigned it to his arch rival: Anthony Kennedy.

While Ginsberg was tasked by the liberals to write the dissent.

Anthony Kennedy, as the writer of the conservative's opinion, kept addressing what he knew to be Ginsberg's dissent. Even tough Kennedy KNEW Roberts wasn't on board! (He just probably figured Roberts had no choice.)

HA HA

Someday? The story might be told. Gosh knows, I read books (like the BRETHREN. And, the "SCORPIONS" ... which went on to describe how FDR's picks ended up hating each other.) In other words. Philosophies can be the same. But in fighting is typically the "rule."

Who will end up being identified as the genius? My guess KAGAN.

Kagan may be as smart as Frances Perkins. It's just that how brilliant females operate (in the hostile enviroment), is not taught in school.